A special education legal resource discussing case law, news, practical advocacy advice, and developments in state and federal laws, statutes and regulations. Postings include insight and sometimes humor from Charles P. Fox, a Chicago, Illinois attorney who is also a parent of child with special needs, and other guest authors. Email: [email protected]

December 21, 2018

In an ongoing effort to role back more progressive and supportive guidance the current Department of Education under Secretary DeVos revoked prior guidance and policy documents designed to protect students including those with disabilities. The National Center for Learning Disabilities has issued a statement in opposition to this revocation. The following is a response from COPAA, a national recognized special education advocacy organization, that I am proud to be a member:

Today, the bar for supporting and protecting our children has dropped to a new low. With the rescission of the discipline guidance, Secretary DeVos has communicated to our nation’s children with disabilities and children of color that they are not valuable; and, that the negative, disparate experiences they face at school do not matter. While it is unequivocal that revoking the guidance does not change requirements under the law and the statutory and regulatory requirements of Title IV and Title VI remain intact, today’s action ignores the facts and fails our most at-risk children.

The guidance was created to promote equity in how our students experience disciplinary actions and provided resources for school administrators to inform decision making and to prevent disparity based on race and disability. It also included explanations from the U.S. Departments of Justice and Education about the well-defined processes they would use to investigate cases of discrimination under Titles IV and VI.

The guidance has helped school districts develop programs to incorporate a range of strategies that reduce challenging behaviors, maintain a safe learning environment, and keep kids in school. The guidance also provided a measure of accountability within federal jurisdiction.

Today, however, it’s clear the rescission is targeting the removal of both the guiding support for school districts as well as the public commitment from the federal government that would assure students civil rights are protected. The Administration is now choosing to hide how legal obligations will be fulfilled.

COPAA is aware there are many educators striving to implement policies and programs to positively support students and reduce disparity; soundly designed with the needs of students and school leaders in mind. We stand with and encourage all school and district leaders who are committed to systems based on mutual respect, grounded in evidence-based educational practices and whose focus is to create safe, inclusive and positive educational environments.”

Marshall concluded, “Unfortunately, the rescission is likely to foster the growth of racially discriminatory practices where implicit bias and other negative factors disproportionately impact students with disabilities and students of color, including the use of abusive practices such as seclusion and restraint. To mitigate the impact of the hardened action from Secretary DeVos, COPAA renews its commitment to stand up for children. We’ll do so by continuing to fulfill our mission; specifically, we’ll take every necessary step to hold the Office for Civil Rights and the Department of Justice accountable for the civil rights of the children we protect and serve.”

The Department of Justice and the Department of Education withdrew the following statements of policy and guidance:

Dear Colleague Letter on Nondiscriminatory Administration of School Discipline dated January 8, 2014; and

Overview of the Supportive School Discipline Initiative dated January 8, 2014.

Additionally, the Department of Education is withdrawing the following related documents:

Guiding Principles: A Resource Guide for Improving School Climate and Discipline,dated January 8, 2014;

Appendix 1:S. Department of Education

Directory of Federal School Climate and Discipline Resources, dated January 8, 2014;

Appendix 2: Compendium of School Discipline Laws and Regulations for the 50 States, Washington D.C., and Puerto Rico, dated January 8, 2014; and

December 20, 2018

At our office we have had an ongoing battle with Chicago Public Schools creating its own set of rules for when they will provide home bound instruction. They frequently make up rules under the heading "that is not the way we do things here in Chicago." I have come to calling CPS the "Republic of Chicago," as it appears they do not believe they are still part of the federal system of laws including IDEA. Several months ago, my associate Julie Welsh, filed a complaint with the Illinois State Board of Education challenging CPS's refusal to provide home bound services for a Download 1834_0001 student with mental health services because an MD doctor signed off on the request (as required by law) but not his psychiatrist (not a requirement of the law). The attached is the decision from the state investigators not only finding in our favor on this specific case, but ordering CPS to make a systemic change in how they address requests for home bound services. CPS will need to draft new policies for delivery of home bound services, train staff of the new policies and document implementation of the new policy. Santa came a little early this year and we could not be happier for the client and for they systemic changes that Julie was able to bring about for other families in Chicago.